IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 18^TH DAY OF NOVEMBER, 2008

BEFORE

THE HON'BLE MR.JUSTICE B.S.PATIL

WRIT PETITION NO.9998 OF 2008 (GM-CPC)

BETWEEN:

$\mathcal{L}^{\bullet}$

SHIVEGOWDA. S/O CHIKKEGOWDA. AGED ABOUT 38 YEARS. R/O CHIKKAGOWDANA KOPPAL. YELAWALA HOBLI, MYSORE DISTRICT – 571 130.

$\therefore$ PETITIONER

(BY SRI PRASANNA KUMAR, ADV.)

AND:

• 1. JOGIMARI. $S/O MARIA$ , AGED ABOUT 37 YEARS. R/O CHIKKAGOWDANA KOPPALU, YELAWALA HOBLI, YELAWALA TALUK, MYSORE DISTRICT - 571 130.
• 2. KARIYA, S/O MARIA. AGED ABOUT 27 YEARS, R/O CHIKKAGOWDANA KOPPALU, YELAWALA HOBLI, YELAWALA TALUK, MYSORE DISTRICT - 571 130.
• 3. NAGARAJU. S/O MARIA. AGED ABOUT 25 YEARS, R/O CHIKKAGOWDANA KOPPALU, YELAWALA HOBLI, YELAWALA TALUK, MYSORE DISTRICT - 571 130.
• 4. VISAKANTA. S/O SHIVEGOWDA.

AGED ABOUT 40 YEARS, $R/O$ YALAWALA HOBLI, YELAWALA TALUK, MYSORE DISTRICT - 571 130.

.. RESPONDENTS

(BY SRI RAJASHEKAR HILYAR, ADV. FOR SRI O.SHIVRAM BHAT, ADV.)

THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO OUASH THE ORDER DATED 13.02.2008 ON I.A.NO.3 IN O.S.NO.294/2006 PASSED BY THE LEARNED II ADDL. CIVIL JUDGE (JR.DN.) & JMFC., AT MYSORE (DISTRICT MYSORE) AS PER ANNEXURE-D AND ALLOW I.A.NO.3 AS PRAYED FOR.

THIS PETITION COMING ON FOR PRELIMINARY HEARING B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

1. Challenge in this writ petition is to the order dated 13.02.2008 passed by the court below rejecting IA No.3 in O.S.No.294/2006.

Petitioner herein is the plaintiff before the court below. $2.$ He has filed the suit seeking specific performance of the agreement dated 07.02.2006 executed by defendants 1 to 3 (respondents 1 to 3 herein). Plaintiff filed an application IA No.3 seeking to implead the 4^th respondent herein one Visakanta as additional defendant. He alleged that after the execution of the agreement of sale in his favour, defendants 1 to 3 have sold the suit schedule property in favour of the proposed defendant-4^th

respondent herein by way of a registered sale deed dated 22.04.2006. He has further stated that the plaintiff learnt about the same only after the written statement was filed. The suit is filed on 22.07.2006. The sale deed in favour of the 4^th respondent herein was executed on 22.06.2006. Therefore it is not as if the sale deed is executed during the pendency of the original suit as found by the court below. In fact, the court below has dismissed the application by a cryptic order without going into the merits of the contentions raised by both the parties. The court proceeds as though the purchase was made by the 4^th respondent pendente lite. Though the proposed defendant had not filed any objection to the application, the court below has persuaded itself to dismiss the application holding that the proposed defendant was not a necessary and proper party to the suit.

Counsel for the 4^th respondent has filed objections to the З. writ petition and has contended that the property purchased by the proposed defendant is distinct and separate from the one agreed to be sold in favour of the plaintiff. This court cannot go into this question as the court below had no occasion to deal with the same. The only order that is required to be passed in

the facts and circumstances of this case is to direct the court below to re-hear the application and pass a fresh order, as the order under challenge is not a speaking order and does not consider the merits of the claim made by the petitioner. The same therefore deserves to be set aside.

4. Hence, this writ petition is allowed. The impugned order is set aside. The court below is directed to re-hear the application IA No.3 and pass a reasoned order. The proposed defendant-respondent no.4 is permitted to file objections to IA No.3 before the trial Court.

$Sd/-$ Judge

$\boldsymbol{K}\boldsymbol{K}$